Protecting State Secrets as Intellectual Property: A Strategy for Prosecuting WikiLeaks

Abstract

Criminal statutes generally deployed against those who leak classified government documents — such as the Espionage Act of 1917 — are ill-equipped to go after third-party international distribution organizations like WikiLeaks. One potential tool that could be used to prosecute WikiLeaks is copyright law. The use of copyright law in this context is rarely mentioned, and when it is, the approach is largely derided by experts, who decry it as contrary to the purposes of copyright. Using copyright to protect state secrets, however, particularly if done through suit in a foreign court, escapes a number of the impediments to a WikiLeaks prosecution, such as the limited scope of narrowly tailored U.S. criminal statutes or the need to apply U.S. law extraterritorially and extradite defendants. Admittedly, using copyright law for these purposes presents its own set of problems, perhaps most intractable under U.S. law, but still significant in the case of suits brought in a foreign court under foreign law. This Note will explore these difficulties, such as the government works issue, potential fair use or fair dealing defenses, as well as various non-legal obstacles to success, eventually reaching the conclusion that prosecuting WikiLeaks internationally for copyright violations is potentially more viable than any of the methods of criminal prosecution heretofore explored publicly by government attorneys and legal scholars.

Keywords: copyright, intellectual property, Wikileaks, international law, Berne, trips, state secrets, national security, international law